N1035

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

ASELIN

Wewak
Doherty J

5-6 December 1991

CRIMINAL LAW - Murder - Causation - Operating and substantial cause of death - Medical treatment prior to death - Whether normal treatment - Treatment not available at aid post - Death on arrival at next aid post - Whether death caused by wound - Criminal Code (Ch No 262), s 297(1).

CRIMINAL LAW - Murder - Defences - Provocation - Beating by husband - Retaliation with small knife in possession - Whether stab wound proportional to unarmed beating - Defence established - Criminal Code (Ch No 262), s 269(1).

The Criminal Code (Ch No 262), s 297(1), provides:

"A person shall be deemed not to have killed another if the death of the person does not take place within a year and a day of the cause of death."

On a charge of murder, the evidence showed that the accused wife whilst being dragged along the ground and beaten by her husband struck a single blow between the ribs with a small knife she happened to be holding at the time. The husband was carried to the nearest aid post but the aid post orderly did not have the resources to treat him and he had to be carried for a further four to five hours for treatment at another health centre. He died soon after arrival at the second health centre.

Held

(1) On a charge of murder where death does not occur immediately the court must be satisfied that the original wounding was the operating and substantial cause of the death: death following normal treatment to deal with the wounding may be regarded as caused by the felonious injury, but the same principle does not apply where the treatment applied is abnormal.

R v Smith [1959] 2 QB 35; [1959] 2 All ER 193 and R v Jordan (1956) 40 Cr App R 152, applied.

(2) In the circumstances, the treatment received at the health centre was to be regarded as normal treatment and hence death took place within the time provided by s 297 of the Criminal Code.

(3) In the circumstances, a defence of provocation under s 269(1) of the Criminal Code had been made out and the accused should be acquitted.

Cases Cited

R v Smith [1959] 2 QB 35; [1959] 2 All ER 193.
The State v Takip Palne of Dumbol [1976] PNGLR 90.

Trial

This was the trial of an accused on a charge of murder.

Counsel

J Wala, for the State.
M Gene, for the defendant.
Cur adv vult

6 December 1991

DOHERTY J: The defendant was indicted on one count of the unlawful killing or manslaughter of her husband Andrew Karoum on 30 September 1991. Facts presented by the State are not in dispute. There was no post mortem on the court record at committal stage and none has been presented in this Court despite a statement by the health extension officer, F Kuyame that the deceased’s body was taken to the morgue for post mortem examination and report. As a result we have no expert evidence on the actual cause of death and the only medical evidence, from Mr Kumaye, describes a single wound seen on the left of the body between the fifth and sixth ribs, 10-12 millimetres long, 4-5 millimetres wide and 7 centimetres deep "without much bleeding and no evidence of fractured ribs". Other parts of the body on examination were round to be normal, no other wounds or bruises were found. The health extension officer suggested five possible causes of death. These were: "Haemo-Pneumothorax, Internal Bleeding, Penetrating spleen (ruptured), Penetrating stomach, Penetrating Haert (sic)." The health extension officer also recounted the deceased’s medical treatment prior to his death. As has been said by the State witnesses the deceased sustained the wound on the evening of 14 September 1991 between 8.00pm and 9.00pm He was then taken to the aid post at Yamles having been carried there by fellow villagers on a home made stretcher. On arrival at Yamles it was found that his condition was beyond the resources of the health centre at Yamles and they referred him to Drekikir Health Centre for treatment. He arrived at the health centre at 3.00 am; that is approximately seven hours after the injury was sustained. According to all accounts during that time he was carried from the village, to Yamles, to Drekikir.

On the evidence before me he was in normal health prior to the fight between himself and the accused when the would was inflicted on him. The medical treatment, or lack thereof, and the fact that he was carried over a period of hours from the village led to a preliminary point being raised by counsel for the defence that this treatment or lack of it together with the carrying over the long period was the cause of the death and not the wound. If medical treatment had been promptly and proficiently available then the deceased may have survived and it was events after the stabbing which contributed to the death.

Counsel has not been able to refer me to any statute or case law to substantiate this submission and I have not been able to find any case law on the point in this jurisdiction. The English case of R v Smith [1959] 2 All ER 193 (a pre-Independence English case) in which causation in murder was considered is of help.

In that case a fight took place in a barracks occupied by soldiers and three men were stabbed by a bayonet. One of the three was stabbed in the back. He was carried by another soldier to the medical station for treatment. He was dropped twice en route and arrived there an hour later. A superficial examination indicated that he was not seriously injured and other case were dealt with before his. It was subsequently found that the stab wound had in fact pierced the lung and he died soon after. The medical evidence showed that if he had received immediate treatment for the serious wound and been given blood transfusions and other treatment he might have survived. There were no blood transfusions available at the medical station. The defendant Smith was subsequently charged with the murder of the deceased and convicted by a general court martial. He appealed on several grounds including a submission that a court must be satisfied that death was a natural consequence and sole consequence of the wound, if anything happened which impeded the chance of the deceased recovering then the death did not result from the wound.

The Court of Appeal did not accept this contention. It said (at 198):

"... if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of the death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original would merely part of the history can it be said that the death does not flow from the wound."

The court also cited with approval R v Jordan [1956] 40 Cr App R 152 which stated (at 157): "that death resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the felonious injury", but that the same principle does not apply where the treatment applied is abnormal.

I am satisfied that there was no abnormal treatment rendered to the deceased Andrew Koroum, that his fellow villagers acted in an expeditious and a normal way in carrying him to the nearest available medical aid post and they acted equally normally when accepting the advice of the APO after preliminary treatment in taking him to the Drekikir Health Centre where whatever treatment was available was rendered to him.

On the evidence before me I can see no new cause that is either unreasonable or extraneous coming in to disturb the sequence of events in the situation before me.

I am satisfied from the medical report that the deceased died as a result of the injury received by the wound penetrating between the fifth and sixth ribs. Although the health extension officer is unable to say which of the five possible causes resulted in the death, I am satisfied on his evidence that they all relate to the wound sustained by the deceased and I am satisfied that the death occurred within one year and one day of the stab rendered by the defendant. Accordingly I am satisfied under s 297 *1 of the Criminal Code Act (Ch No 262) that death took place within one year and one day and its cause was directly attributable to the actions of the accused in inflicting a single blow with a knife to the side of the deceased.

The facts giving rise to the blow are described by the State witnesses as follows:

The accused was sitting with two young persons, Andrew and Jacob at about 7.00 or 8.00 o’clock on the evening of 30 September 1991 at Yamles village. The three were chatting. The defendant had earlier placed her baby (estimated to be about five months at the date of the incident), on the verandah of her house which is approximately 50 yards from where she was sitting. Her evidence showed that she was unable to get access to the house which was locked while she and her husband were at church, she had asked the husband for the key to put the baby to bed and was told it was in a basket at the verandah. It was not there so she wrapped the child up and left it sleeping on the verandah. She says in her statement to the police that the deceased acted maliciously in misleading her about the key. I am not convinced that it was necessarily a malicious act on his part.

In any event, whilst she and the two boys, who were her relatives were talking one of them heard the deceased arrive home and (according to one witness) "her husband hit their child and she cried". Neither the defendant nor the other State witnesses referred to the deceased hitting the child; whether he tripped over it or hit it deliberately we do not know.

The deceased unexpectedly arrived at the house where the others were sitting. He was carrying a piece of wood, he did not speak or make any sign to the accused but came up at her back and hit her with the dry timber on the head. The timber broke in half. After hitting her he pulled her by the hand and dragged her outside into the dark area in the middle of the village. This is the description given by the witness Jacob Jambran. The witness Andrew Mambak also refers to the three of them sitting chatting and their surprise when the deceased came at the back of the accused and hit her with a stick "on her head so hard and as a result the stick broke into half. And at the same time Andrew Koroum his husband took her in the middle of the village"[sic].

The defendant herself says in her evidence that she was sitting with the two young men who were her relatives (there is no suggestion of any improper behaviour between them) when the deceased came from behind carrying a piece of wood and hit forcefully on her head with it. He did not speak; he then took her by the hand and pulled her away.

The State witnesses say after he pulled her away he took her into a dark part of the village and they could not see but they heard sounds and thought there was a quarrel. They did not go to investigate any further. They then heard a call from the deceased and a cry from the accused, rushed over and saw the deceased was injured. They then made a home-made stretcher and carried him to the nearest aid-post. The aid-post orderly put some dressings on the wound but the aid-post orderly informed them that he did not have the facilities to treat the deceased properly, gave him an injection, made the dressing, wrote a report and sent them to the Drekikir Health Centre. They carried him to Drekikir arriving at about 3.00 o’clock in the morning.

The defendant’s evidence was that the wood used was approximately 1 metre in length and the thickness of her arm, it was a branch of a tree. The blow rendered her giddy and her head was "going round". The deceased then dragged her along with her body on the ground by the arm. She had had a knife in her hand when sitting talking to the others. The knife had been found on the verandah when she was laying the child down to sleep. Her evidence to the police was that the child had been playing with the knife earlier in the day and the deceased had thrown it into the bush but the defendant had subsequently retrieved it and left it on the verandah. I accept as a fact that she was not deliberately armed while sitting with the other two but had lifted the knife off the verandah when she laid the child down. The defendant said as the deceased dragged her along he was kicking her with his feet, (he was not wearing any shoes or boots) and hitting her. He was not armed, it would appear he threw away the broken portion of the wood. She said she wanted him to release her hand and "thought I would given him some sort of injury so he will release me", her free hand was still holding the knife and she lunged with that knife, "the knife missed and the knife got him wrongly and damaged him. There the knife caught him and he fell down. Then he released me". She was already giddy from the blow with the wood and the punches were rendered with a closed hand to her face and the kicks were to her back. The knife she described is a small one, the total length was 23 centimetres.

Her evidence was not disputed that she lifted the knife because she felt dizzy and had pain all over her body and threw it, but she did not know where it went. The defendant said she decided to use the knife "to give him some damage on his body so he would release me". She used the word "defendim mi yet" and this was interpreted as "I mean to say to defend me as he would kill me to death or damage some part of my body so I swung the knife to defend myself". She said she thought if she did not take this action some part of her body might be broken or she would fall unconscious.

The evidence of the State witnesses, that the deceased took the defendant off into a dark place after hitting her forcefully, is consistent with her version that she was giddy and he dragged her into the darkness and she could not see. It is clear from both sets of the evidence that there was no form of lighting in the area.

I am satisfied from the evidence before me that the deceased rendered a forceful blow to the defendant and her eyes were giddy.

I am satisfied on the evidence that the deceased surprised the defendant when he hit her initially and I am satisfied from the evidence of the State witnesses and the defendant that she had only one free hand when she was dragged off by the deceased into the dark part of the village. The State witnesses do not mention the defendant being further hit by the deceased but then there is no medical evidence to show what state she was in on that night. The State witnesses speak of the deceased’s actions in terms of surprise and both say that the deceased took the defendant by the hand and took her away. This is consistent with the evidence of the defendant and I am satisfied that he did strike her first, and kicked her when taking her off. I am satisfied that there was no action on the part of the defendant to provoke or anger the deceased and his assault was unexpected. I am satisfied on the evidence before me that the defendant was in fear of injury or possible death from the deceased and in the circumstances that fear was not an unreasonable fear.

The State has stressed in submissions the fact that the injury to the side is not consistent with a defendant who was being bodily dragged on the ground striking a person who was standing and the defendant must have been in a standing position to render the blow.

There is no direct State evidence on the relevant positions of the parties when the blow was struck but if the deceased was striking the prostrate figure of the defendant with his fists it appears to me that he would have had to bend down to do so and on this basis I consider that the evidence is not inconsistent. I give the benefit of that particular doubt, if any, to the defendant.

Having found on the evidence that the defendant struck the blow under a reasonable apprehension of death or injury I consider that she was acting in self-defence against an unprovoked assault. The question that must be considered when s 269(1) of the Criminal Code is raised in defence is whether the force used is reasonably necessary to make an effectual defence against the assault and if the force used was intended or likely to cause death or grievous bodily harm.

I agree with counsel for the State that the size of the knife is not the relevant matter; it is not, as counsel for the defence said, relevant that the knife was small. The deceased was not armed with any weapon; the defendant was. I have observed the defendant is a small lightly built woman and the deceased, according, to her evidence, was a much taller heavier built and stronger man. If she was lying on the ground, being dragged along and being hit I think she would have reasonable cause to believe, as she did, that she could have been seriously injured.

From the State’s description there was no adequate time for the defendant to go and arm herself and I must conclude, as the defendant says, she already had the knife in her hand when she was taken off. She says her intention was only to loosen the hold on her and this would appear to be borne out by the fact that only one blow was rendered to the deceased; there is no evidence of repeated blows in anger or with an intention to inflict harm or in revenge.

Applying the criteria set out in The State v Takip Palne of Dumbol [1976] PNGLR 90 at 92. I am satisfied that:

1. The accused was unlawfully assaulted;

2. The accused had not provoked the assault;

3. That the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily on the part of the defendant.

It is the fourth criteria, that is, that the accused believed on reasonable grounds that she could not preserve herself from death otherwise than by the force used which raises the question of proportionality here. It has been held (for example, in The State v Kenny (Andrew J unreported) that the arming of a person with a knife against an unarmed person will normally be disproportionate.

I am quite satisfied on the evidence before me that the defendant did not deliberately seek a weapon in retaliation to the assault against her, she already had a knife in her hand when she was dragged out. I do not consider that, in the circumstances in which the defendant was, she would have had time or the calmness of mind to "weigh to a nicety that the exact measure of necessary defensive action" as quoted in The State v Takip Palne of Dumbol (at 94). I find that she acted quickly with the intent to sustain her release from the deceased and not with the intent to cause him any form of harm and that she did so on the actual and reasonable belief that if she did not do so she would be seriously injured.

On this basis I find that the defence under s 269(1) of the Criminal Code Act has been made out and accordingly I acquit the defendant.

Verdict of acquittal

________________

Lawyer for the State: State Prosecutor.
Lawyer for the defendant: State Solicitor.